M/S K.A Gasses vs M/S Pak Arab Fertilizers

HCJDA-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

R. F. A. No. 253 of 2026

M/s. K. A. Gases Private Limited versus M/s Pak Arab Fertilizers Limited

JUDGMENT

Date of hearing 16.09.2026

Appellant by: Mr. Khalid Ashraf Khan, learned Advocate.

Respondent by: Malik Muhammad Husnain Rajwana, learned Advocate.

Sultan Tanvir Ahmad, J:–Through this judgment, the captioned appeal as well as appeals No. 157 of 2024 and 158 of 2024 shall be decided together.

2.The appellant instituted suit dated 13.11.2009 (the “first suit”) for declaration and permanent injunction pleading unilateral changes in terms and conditions of agreement allegedly executed on 03.05.2002 and subsequently amended one on 09.09.2003. The respondent promptly filed written statement and thereafter the issues were settled on 20.02.2010. Another suit for recovery of damages was filed on 22.10.2012 (the “second suit”) by the appellant seeking to recover damages claiming humiliation, damage to business or loss of profits, reputation and mental torture.

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3.The second suit was also contested by the respondent-side and issues were settled on 20.12.2013. The appellant then filed suit dated 28.05.2014 (the “third suit”) for recovery of damages. The second suit and the third suit were consolidated on 29.06.2021 and consolidated issues were framed on the same date. The first suit was consolidated with the remaining two suits on 31.03.2023 (hereinafter the three suits will be called as the “suits”). The appellant time and again kept requesting for adjournments for producing evidence. Upon complete failure in this regard, the learned trial Court closed the right to produce evidence of the appellant and then proceeded to decide the case, vide order dated 26.02.2024.

4.Mr. Khalid Ashraf Khan, learned Advocate for the appellant, has submitted that the right of fair trial guaranteed under Article 10-A of the Constitution of Islamic Republic of Pakistan-1973 has been violated by closing the right to produce evidence. He attributed the default to the respondent-side and stated that one fair opportunity may be granted and finally sought an order of remand.

5.Conversely, Malik Muhammad Husnain Rajwana, learned Advocate for the respondent, has vehemently opposed the appeal. He has highlighted the conduct of the appellant during the trial. He has further argued that the main object of the successive suits is to harrass and blackmail the respondent.

6.We have heard the arguments of learned counsel for the parties and perused the record.

7.The issues in the first suit were settled in the year 2010. The order-sheet of the said suit reflects that

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from 13.04.2010 till 04.12.2010 the appellant kept on seeking adjournments for producing evidence. A warning was issued and an order for “absolute last opportunities” with cost was also passed. The appellant-side failed to appear on 10.12.2010 when the first suit was dismissed for non-prosecution. Thereafter, miscellaneous applications including application for restoration, amendment in the plaint and transfer of the suit were filed. On 12.03.2015, the first suit was dismissed, having become infructuous. A similar resentful conduct remained in the second suit wherein the issues were framed on 20.12.2013. The appellant sought numerous opportunities to produce evidence. In the year 2014, application(s) were filed: (i) for placing list of witnesses (ii) for amendment in the plaint and (iii) for placing documents on the record which were not part of the list of reliance. They were finally decided in 2015. Thereafter, another round of seeking opportunities to produce evidence started in the second suit. The appellant failed to produce evidence till the year 2016.

8.The third suit was also pending with a similar position. In this suit, initially, the appellant failed to properly assist the Court in framing the issues. From 30.03.2015 to 30.04.2015, the appellant caused delay in filing the list of legal heirs of one of the deceased parties on the appellant's side and thereafter continued seeking adjournments for filing the amended plaint until 16.05.2015. Subsequently, an application for consolidation of the second suit and the third suit was filed on 14.05.2016.

9.The said application for consolidation of the

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second suit and the third suit was allowed in the year 2021. After framing consolidated issues, the appellant was directed to produce evidence. However, the appellant continued seeking adjournments for producing evidence, as is evident from the orders dated 24.07.2021 and 15.01.2022. On 01.02.2022, an “absolute last and final opportunity” was granted at the request of the appellant. The same request was made on 16.02.2022, and once again, an “absolute last and final opportunity” was granted.

10.On 09.03.2022, when the request for adjournment to produce witnesses was made, the learned trial Court warned the appellant that the penal provisions of Order XVII Rule 3 of the Code of Civil Procedure, 1908 (the “Code”) would be invoked, and adjourned the case to 26.03.2022. The order of the learned trial Court on the said date of hearing reads as under:- “Today the case was fixed for plaintiff's evidence with final and last opportunity. Learned counsel for the plaintiff again sought adjournment for complete plaintiff's evidence which hardly opposed by the defendants with pray to close the evidence right of plaintiff. Perusal of the record reveals that ample opportunities have already been granted for evidence. In the interest of justice and on the request of learned counsel for the plaintiff's absolute last and final opportunity is hereby granted for complete plaintiff’s evidence with cost Rs.500/-. In case of failure to produce, the right of evidence of plaintiff's would be closed under order XVII Rule 3 of CPC.....”

11.Somehow, almost after seven years, the first suit was revived and it was clubbed with the other two suits vide order dated 31.03.2023 and the following consolidated issues were framed:-

1.Whether the defendants have violated the terms and

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conditions of agreement by unilateral changing the terms and conditions of agreement and their demand beyond terms is illegal? OPP

2.Whether the demand of defendants for bills against the terms and conditions of agreement is void and ineffective upon the plaintiffs as well as their demand of security deposited is unlawful? OPP 3. Whether the plaintiffs are entitled to get the decree for the recovery of damages amounting Rs. 67,85,00,000/-, alongwith profit at the rate of 15% on account of violation of settled agreement? OPP 4. Whether plaintiffs are entitled to recover amount of Rs. 34,60,00,000/-, alongwith annual profit at the rate of Rs. 15% from October 2012 to till September 2013 on account of violation of agreement? OPP 5. Whether all suits of the plaintiffs are not maintainable in its present form? OPD

6.Whether the plaintiffs have filed suits only to pressurized the defendants, therefore, all suits are liable to be dismissed? OPD

7.Whether the suits of recovery of the plaintiffs are liable to be stayed according, to section 10 of CPC as the matter in issue is also directly and substantially was issue in previously instituted suit between the same parties? OPD

8.Whether the plaintiffs are estopped by their words and conduct to file the instants suit, therefore, the suits of the plaintiffs are liable to be dismissed?

OPD

9.Whether the suits of the plaintiffs are based on mala-fide intention, therefore, all the suits of the plaintiffs are liable to be dismissed? OPD 10. Whether the plaintiffs have come to the court with unclean hands, therefore, the suits of the plaintiffs are liable to be dismissed? OPD

11.Relief.

12.After the framing of the consolidated issues, the appellant was directed to submit a list of witnesses and produce evidence on 18.04.2023. On the said date of hearing, a specific request was made by the appellant for an adjournment. The learned trial Court, being mindful of the fact that these were old matters, clarified that no further opportunity would be granted. On 15.05.2023, only one witness was present, and it was specifically requested that an adjournment be granted for producing evidence. An “absolute last and final opportunity” was accordingly granted, with a clear warning as to the

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consequences of failure to produce evidence. The case was fixed for 05.06.2023.

13.On 05.06.2023, two witnesses, namely Muhammad Iqbal and Khalid Naeem, appeared, but it was stated before the learned trial Court that the learned counsel for the appellant was busy, and another request for adjournment was made for recording of the evidence. The case was thereafter fixed for producing evidence on 21.06.2023 and 17.07.2023. On 12.09.2023, two witnesses were present, but once again their examination- in-chief was not recorded. The order-sheet reflects that the learned counsel for the appellant was present before the Court but stated that he was busy in some other case, pending in a different Court. The learned trial Court showed leniency and, at the request of the appellant, granted another opportunity for the purposes of recording evidence, while warning the appellant that, in case of failure to produce the evidence, the right to produce evidence would be closed.

14.The case was adjourned to 03.10.2023, when three witnesses appeared before the Court, but the learned counsel for the appellant made the same statement of being busy in some other case. This, on the face of it, appeared to be a ploy to cause delay. Nevertheless, at the request of the learned counsel for the appellant, a last and final opportunity was granted to produce evidence on 21.10.2023. However, no witness attended the Court on that date, and yet another opportunity was sought. The learned trial Court again granted an “absolute last and final opportunity”, this too at the specific request of the appellant. The case came up for hearing on 11.11.2023,

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but the same position prevailed. On 11.01.2024, the appellant again failed to produce any witness. Once again, an “absolute last and final opportunity” was granted for producing evidence.

15.On 13.02.2024, the appellant, yet again neglecting and disobeying the several orders of the learned Trial Court, failed to produce evidence, whereupon the following order was passed:- “Today the case was fixed for plaintiff’s evidenced with final and last opportunity. Learned counsel for the plaintiff again sought adjournment for complete plaintiff's evidence which hardly opposed by the counsel of defendants with pray to close the evidence right of plaintiff. Perusal of the record reveals that ample opportunities have already been granted for evidence. In the interest of justice and on the request of learned counsel for the plaintiff absolute last and final opportunity is hereby granted with cost of Rs. 500/-, for complete plaintiff's evidence. In case of failure to produce evidence, the right of evidence of plaintiff would be closed under order XVII Rule 3 of Civil Procedure Code.....”

16.The ruse to cause delay remained manifestly clear. Whenever the learned Trial Court, gave the warning to close the evidence, the appellant either kept on neglecting it and on certain hearings caused attendance of some witnesses when appellant”s advocate appeared and flatly refused to record the examination-in-chief with the lame excuse of being busy. Needless to reiterate that on 11.01.2024 and 13.02.2024, no witness was present and these hearings were fixed for evidence as per the request of the appellant. Finally, on 26.02.2024, besides the learned Advocate of the appellant no one attended the Court. The order-sheet does not reflect whether the order of cost was even complied with. The plaintiff / appellant

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was admittedly absent; therefore, the learned trial Court could not be expected to invite the appellant to enter the witness box. The learned trial Court observed that there is no justification to grant any further opportunity and proceeded to invoke penal provisions of Order XVII Rule 3 of the Code and then dismissed the suit.

17.In Muhammad Akram case1, the Honourable Supreme Court has reiterated the conditions that are required to co-exist before the right to produce evidence can be closed under Order XVII Rule 3 of the Code on account of non-production of evidence.

18.In the said case, the learned Trial Court closed the evidence on 25.01.2024 and proceeded to dismiss the suit vide judgment and decree dated 25.01.2024. The Honourable Supreme Court declined to show leniency in view of the indolent conduct of the litigant, who was prolonging his possession of the property in question, observing that a litigant cannot be allowed to make a mockery of the law.

19.The Supreme Court of Pakistan, in paragraph No. 7 of Lutfullah Virk case2, observed that the phenomenon of undue adjournments has become a plague for the country”s justice system and that the people seeking relief are becoming embittered due to this practice. The Honourable Supreme Court referred to Duniya Gul case3 and observed that adjournments cannot be used as a delaying tactic, nor can they be demanded as Muhammad Akram vs. Shafaqat Ali” (2025 SCMR 1032) Lutfullah Virk vs. Muhammad Aslam Sheikh” (PLD 2024 Supreme Court 887)

Duniya Gul and another vs. Niaz Muhammad and others” (PLD

2024 SC 672)

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a matter of right; yet, the reality is quite different. We would also like to reproduce the relevant paragraphs of Lutfullah Virk case (supra):-

“10. On the flipside, what happens when a Court does not allow a request for adjournment? The matter is to proceed as envisioned in Rule 3 of Order XVII of C.P.C.. Rule 3 uses etcetera at the end of its title, which would encompass everything else apart from production of evidence, and further states that if any party to a suit fails to "perform any other act necessary to the further progress of the suit, for which time has been allowed" the Court "notwithstanding such default, proceed to decide the suit forthwith.

13.Furthermore, the Court's Order, of 14.07.2005, which closed the present Petitioner's right to cross-examine the witnesses of the Respondent, also enjoys the protection of Rule 3 of Order XVII of CPC. As per Rule 3 if any party to a suit to whom time has been granted, in this case the Petitioner, who was granted time by the Court on 31.05.2005, up until 09:30 AM of 14.07.2005, fails to produce evidence, cause attendance of his witnesses, or to "perform any other act necessary for the progress of the suit, for which time has been allowed" the Court may then "notwithstanding such default, proceed to decide the suit forthwith." The term "decide the suit forthwith" over here does not imply that the Court is to reach a decision on the lis before it on the same day, holding that would result in a violation of the fundamental right to a fair trial guaranteed by Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"). Rather, the term "decide the suit forthwith", implies that the suit is now to be decided without delay, meaning that further adjournments cannot be granted to the party which had already been allowed time to

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produce evidence, cause attendance of his witnesses, or perform any other act necessary for the progress of the suit”

20.There is no gainsaying that Order XVII Rule 3 of the Code is penal in nature and cannot be resorted to mechanically. The provisions must be construed strictly before adverse consequences inflicted upon the party. The Honourable Supreme Court in Shakeel Ahmad case4 has recently observed that statutory requirement must be fulfilled before invoking penal provisions under Order XVII Rule 3 of the Code and thereafter the Court has to proceed further.

21.The power to decide the suits on merits soon after the default of a party is a drastic power, restricting the remedy of an unsuccessful party, and such can only be used in exceptional cases. However, there must be some material for a decision on merits. Sometimes the decision in such cases could be on the basis of pleadings, documents and burden of proof5. The existence of material, when the plaintiff neglects to produce the evidence, despite obtaining ample opportunities, does not necessarily mean the existence of evidence. Material on record need not be given a technical meaning and equated to evidence6. In the absence of such evidence, the learned trial Court should have at least referred to the pleadings of the parties while deciding the case7. This in our opinion is warranted where the conduct of the plaintiff is flagrant in “Shakeel Ahmad and another vs. Abdul Ghaffar” (C.A. No. 357- L/2013 out of C.P.L.A. No. 714-L/2012)

“Rama Panicker Divakara Panicker of Pavana Veedu vs. Bakari Hydrose, Chennampilly and others” (AIR 1990 KERALA 295) “Gopi Kisan vs. Ramu and another” (AIR 1964 Rajasthan 147

(V 51 C 40)

“Bagh-e-Rehmat Trust versus Khalid Riaz” (1985 CLC 3009)

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nature, for example, where the suit is maintained merely to harass, blackmail, or otherwise misuse the process of the court and waste its time, with the sole object of dragging the other side into litigation.

22.We being the first Appellate Court have already discussed some facts of the case, in the preceding paragraphs. The issues No. 1 to 4 included the issue of alleged unilateral change in the terms and conditions of the agreement, the damage and entitlement to damages or sought recovery. The burden to prove all these issues was on the plaintiff, and no affirmative evidence in that regard could be led by the appellant / plaintiff. The written statements do not contain any admission with respect to the said issues. We have consciously considered the pleadings, issues, onus on the respective parties and the relevant record. The appellant / plaintiff failed to discharge the burden placed on him in view of the pleadings and consequent issues despite the opportunities afforded to him.

23.As discussed above, the suits were instituted in the years 2009, 2012, and 2014. They remained pending on the docket of the learned Trial Court for years. We have discussed at length how the appellant managed to delay the proceedings at various stages and, in all three suits, failed to produce evidence, repeatedly sought adjournments, and kept filing one application after another. The suits could not have been adjourned for evidence ad infinitum.

24.Besides the above-referred judgments of the Honourable Supreme Court, there is a long series of decisions in which the Courts have refused to grant relief

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on account of the conduct of the parties seeking such relief. In Munawar Hussain case8 when the learned trial Court after closing the evidence proceeded to decide the case, the Honourable Supreme Court observed as follows:-

“....Bare perusal of order-sheets indicates that even petitioner or his authorized attorney had not appeared before the Court on any of the dates of hearing. Record speaks volumes about petitioner's extraordinary negligence in perusing the case. It was obligatory for the petitioner to have taken effective steps either for producing or summoning the evidence to support his claim of being landlord of the house in occupation of the respondents. Trial Court had shown sufficient indulgence and there does not appear any impropriety or defect for ultimately closing side of the petitioner on account of his consistent failure to produce evidence despite seeking repeated adjournments. The trial Court could not be deemed at the mercy of petitioner or totally helpless to await till petitioner chooses to comply with repeated direction of producing evidence...”

(Underlining added)

25.A similar view has been adopted by this Court in Haji Mohammed Ilyas case9. After reaching to the conclusion that the plaintiff is continuing with the suit only to cause harassment to the defendant, in Wadera Dalel Khan case10, the Court concluded as follows:- “...It is desirable that litigants should get decision on merits in their cause. If the plaintiffs fail to comply with the order of the Court repeatedly then an action can be taken against them under the relevant provision of law. We should make it clear that extreme measures should only be taken if the “Munawar Hussain vs. Additional District Judge, Jhelum and 3 others” (1998 SCMR 1067)

“Haji Mohammed Ilyas vs. Haji Mushtaq Ahmed through L.Rs.”

(2019 CLC 2041)

“Wadera Dalel Khan and 7 others vs. Province of West Pakistan and 6 others” (PLD 1970 Quetta 79)

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Court comes to the conclusion that the plaintiffs by their conduct had made it impossible for the Court to proceed with the trial of the suit and the continuation of the proceedings was only intended to cause harassment to the defendants.”

(Emphasis applied)

26.The appellant”s conduct appears vengeful. The suits have been kept alive for decades merely to satisfy a vindictive motive and have operated vexatiously and oppressively on the respondent. Record reflects that at various stages starting from 2009 (in the first suit) onwards different tactics were adopted. The position in the remaining suits is not any different. Even after consolidation of the suits, there are number of “absolute last opportunities” granted. On few hearings, partial evidence was present but appellant himself remained reluctant in getting the examination conducted. On those hearing dates, “sufficient cause” as required under Order XVII Rule 1 of the Code was not available. The learned counsel for the appellant has stated on couple of hearing dates that he is busy with other case(s), which is hardly a cause to seek adjournment that qualifies the principles settled in Lutfullah Virk case (supra). On the dates preceding the final decision by the learned trial Court, no witness was present and adjournments were granted as “absolute last and final opportunities”, at the specific request of the plaintiff / appellant with warning to invoke the penal provisions of Order XVII Rule 3 of the Code. The manner in which the case was conducted by the plaintiff / appellant, over a period of decades, does not warrant any leniency yet an order of remand is being sought by the appellant.

27.Learned counsel for the appellant miserably

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failed to persuade us to pass an order of remand and to grant another opportunity to produce evidence. We have already considered the available material, merits, and demerits of the case. The titled appeal as well as appeals No. 157 of 2024 and No. 158 of 2024 stand dismissed. No order as to costs.

(Muhammad Sajid Mehmood Sethi) (Sultan Tanvir Ahmad) Judge Judge

Approved for reporting

Judge Judge Iqbal/Hashmi-